Family Law 2012-2013
Book Information
Family Law Statutes 2012-2013
4th Edition
Author: Phil Bates
Publication date: 14th August 2012
Purchasing Options:
How to use this Book
It is impossible to understand modern family law without understanding its statutory basis. These statutes represent the outcome of major law reform projects by the Law Commission or other public bodies, research, campaigning, and political debate. They demonstrate some of the profound social changes which have occurred over the last fifty years, and many of the challenges which still remain.
Nevertheless, many law students find it much easier to remember the details of cases, and become very vague when referring to statutory provisions, even when they have a statute book in front of them. Reading family law cases is an invaluable way to understand how statutory provisions are applied, and how the law is developing, but it is always a good idea to start with the statutory provision in question before asking how it has been applied and interpreted.
A textbook summary of the effect of legislation, however good, will rarely give a complete picture of the way in which a statute is put together. There is no substitute for working through the statute itself, seeing how definitions are built up and how different sections relate to each other, no matter how unrewarding this may seem at first. Far too many students lose easy marks in examinations because they appear to have opened their statute book for the first time in the examination hall, or not at all. If you cannot demonstrate a clear understanding of the statutory framework, you may find it difficult to recover the confidence of the examiner, even if you make good points elsewhere in your answer.
Family law is concerned with relationships and remedies. Whenever you study a family law statute, it is worth identifying the group of people to whom it applies; how they are defined; whether people in different types of relationships are treated equally; and who is left entirely outside the scope of the legislation. When you encounter a new family law remedy, you should locate the part of the statute which describes the effect of the remedy, identifies those who can apply for the remedy, and any other circumstances in which the order may be made. You should also ensure that you are clear about the statutory criteria which govern the availability of the remedy; whether the remedy is available as a matter of right, or as a matter of discretion; whether there is a statutory objective; and which considerations a court is required to take into account, and in what way.
If you can answer these questions (or easily locate the part of your statute book which answers them for you), then you will have an excellent starting-point for understanding family law cases and academic commentary, and performing well in examinations and other assessments. Good luck.
Quizzes
Interpreting Statutes
Scenario 1
Peter and Jane have been married for 9 years. They have two children, Arthur and May, aged 7 and 5. Jane says her husband is ‘boring’ and that she can no longer bear living with him. Jane and the children are now sleeping on the living room floor of a friend's flat. Both children are very upset by all this. Arthur has become extremely aggressive to other children, and May is very withdrawn. There are two cats in the flat, and May is always sneezing and scratching because she is allergic to cats. Peter would like Jane and the children to come back home. Jane refuses to return as long as he is there, and would like to obtain a court order requiring Peter to leave the family home.
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Statute
- Family Law Act 1996
Key terms to be included
- occupation order
- entitled
- significant harm
- attributable to conduct
Example Answer
Although this is not a case involving domestic violence, Jane can apply for an occupation order under s 33 of the Family Law Act 1996 as an entitled applicant. Whether she succeeds is likely to depend upon whether the impact on the children amounts to a likelihood of significant harm, and whether this is attributable to the conduct of Peter.
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Scenario 2
Debbie and Jimmy have been living together for two years. Debbie has a history of heroin addiction, although she claims that she no longer uses drugs. Jimmy has convictions for offences of violence. Last year, Debbie gave birth to a little girl, Mandy. A few days after returning home from the maternity unit, Mandy died. The police treated the death as suspicious, but medical evidence was unable to establish the cause of death. Debbie and Jimmy both insisted that this was a ‘cot death’, and the Crown Prosecution Service decided that there was insufficient evidence to prosecute either parent. Clare, a social worker, has just discovered that Debbie is pregnant again, and she is considering whether the local authority should apply for a care order as soon as the child is born. What are the statutory criteria which the local authority have to satisfy?
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Statute
- Children Act 1989
Key terms to be included
- likely
- significant harm
- welfare
- paramount
Example Answer
Under s 31 of the Children Act 1989, the local authority will need to demonstrate that the child is likely to suffer significant harm. This includes a likelihood of physicall ill-treatment, or a risk of impairment of health and development (based upon the history of drug use and violence, and possibly on evidence relating to the death of Mandy). Even if the court is satisfied that the child is likely to suffer significant harm, the child's welfare will be the court's paramount consideration, applying s 1 of the 1989 Act.
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Scenario 3
Arthur and Nora are in their 70s, and have been married for 50 years. Nora has has just discovered that her husband has been having an affair with another woman for the last 10 years. She is devastated by this news. She has insisted that Arthur should leave the house, has thrown some of his clothes into the back garden, made hysterical telephone calls to members of his family, and described his behaviour to the neighbours in highly abusive language. For religious reasons, Nora believes in the sanctity of marriage, and does not want a divorce. Advise Arthur whether he can divorce Nora.
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Statute
- Matrimonial Causes Act 1973
Key terms to be included
- irretrievable breakdown
- behaviour
Example Answer
Although Arthur has committed adultery, he cannot rely upon his own adultery to demonstrate the irretrievable breakdown of the marriage. He may be able to demonstrate that Nora has behaved in such a way that he cannot reasonably be expected to continue to live with her.